Commonwealth v. Hitchings

By the Coukt.

1. The description of a person other than *485 the defendant, in an indictment or complaint, as “ a person unknown,” is sufficient, without further averment, if such person be not actually known. Commonwealth v. Morse, 14 Mass. 218 . 2 East P. C. 651, 751. The sufficiency of such description in a case like the present was distinctly affirmed by this court in Commonwealth v. Hendrie, 2 Gray, 504 .

2. Although the averment of time, in an indictment or complaint, is purely technical, and need not correspond with the evidence on the trial; still, on a motion in arrest of judgment, that fact, like all others, is to be taken to be truly stated. As the. St. of 1855, c. 215, § 39, which took effect on the 20th of May 1855, repealed all previous acts inconsistent with its provisions, saving only existing rights and liabilities, and pending actions and prosecutions, this complaint, by setting forth an unlawful sale of intoxicating liquor on the 1st of June 1855, well charges a n offence against St. 1855, c. 215, § 15. And alleging the offence ta be contrary to “ the statutes ” in such cases made and provided, i s no ground for arresting judgment. Commonwealth v. Hooper, 5 Pick. 42 .

3. It has been established by the highest authority that those amendments of the Constitution of the United States, which contain no expression indicative of an intention to apply them to the state governments, are restrictions upon the government of the United States only. Barron v. Mayor &c. of Baltimore, 7 Pet. 243. And this doctrine has been applied by the courts of New York and Pennsylvania to the very amendment now in question. Barker v. People, 3 Cow. 686 . James v. Commonwealth, 12 S. & R. 221.

4. It is also well settled that when part of a statute is unconstitutional, that will not authorize the court to declare the remainder of the statute void, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected in meaning, that it cannot be presumed that the legislature would have passed one without the other. Wellington, petitioner, 16 Pick. 95 . Fisher v. McGirr, 1 Gray, 1 . Warren v. Mayor & Aldermen of Charlestown, 2 Gray, 84 . Commonwealth v. Clapp, *486 ante, 100. The constitutional and the unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance.

As this defendant stands convicted only of one offence under the St. of 1855, c. 215, § 15, the only question to' be considered by the court in this case is, whether that part of the statute is unconstitutional, which subjects a person making a single unlawful sale of intoxicating liquor, for a first offence, to the payment of a fine of ten dollars and costs of prosecution, and imprisonment in the house of correction not less than twenty nor more than thirty days. These are clearly not cruel or unusual punishments. They are the lightest punishments known to our law; and have been constantly applied to similar offences. The question whether the punishment is too severe, and disproportionate to the offence, is for the legislature to determine.

The constitutionality and validity of this section of the statute, as well as of that imposing heavier penalties on a common seller of intoxicating liquors, have been affirmed upon the present circuit. Commonwealth v. Clapp, ante, 100.

Exceptions overruled * A similar decision was made in Berkshire, September term 1857.

Commonwealth v. Ctjbtis Pomeboy & another.

Indictment on St. 1855, e. 215, § 17, for being a common seller of intoxicating liquors. The defendants, at the trial in the court of common pleas, before Morris, J., requested the judge to instruct the jury “ that said statute of 1855, e. 215, upon which this indictment is founded, and said seventeenth section of said statute, upon which this indictment is founded, and especially in connection with the fifteenth and thirty-third sections of said statute, are unconstitutional and void; because they are in conflict with the eighth article of the amendments of the Constitution of the United States, and also with the twenty-sixth article of the Declaration of Rights in the Constitution of Massachusetts, because they require excessive bail or sureties, impose excessive fines, and inflict cruel and unusual punishments.” But the judge refused so to instruct. The defendants, *487 being found guilty, moved in arrest of judgment for the same cause, and that motion being also overruled, alleged exceptions, which were overruled by this court, for the reasons stated in the principal case.

J. Rockwell, for the defendants, cited Holden v. James, 11 Mass. 396 ; Ross’s case, 2 Pick. 169 ; Norwich v. County Commissioners, 13 Pick. 60 ; Fisher v., McGirr, 1 Gray, 1 ; 1 Kent Com. (6th ed.) 449—455.

J. H. Clifford, (Attorney General,) for the Commonwealth.